October 22, 2019

October 22, 2019

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October 21, 2019

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Northern District of Illinois Court Answers the Question: What KIND of Juice Did They Say It Was?

On July 14, 2014, Northern District of Illinois Judge Sara L. Ellis dealt a blow to putative class action members protesting the use of “evaporated cane juice” to describe sugar in product ingredients lists.  Plaintiff alleged that she was deceived by the label on KIND’s Vanilla Blueberry Clusters, which contained the claim “no refined sugars” on the front, into purchasing the product because she was unaware that one of the listed ingredients – described on the label as “evaporated cane juice” – was actually a type of partially-refined sugar.   The court dismissed the action, with a one-two punch, finding plaintiff had failed to meet the fundamental pleading requirements of alleging: (a) standing to bring suit; and (b) a plausible claim.

KIND Healthy Grains Vanilla Blueberry Clusters

On the standing issue, the court found that the complaint failed to allege that plaintiff suffered any injury from KIND’s “evaporated cane juice” claim.  Plaintiff did not allege that she would have purchased a less expensive snack (or no snack at all) if she had known that evaporated cane juice was, in fact, sugar; nor did she allege that the snack had a diminished value because it contained sugar cane syrup instead of whatever she thought “evaporated cane juice” meant.

Turning to the substance of plaintiff’s consumer fraud claim, the Court found that plaintiff’s failure to explain what she thought the phrase “evaporated cane juice” meant, or how it affected her decision to purchase the Vanilla Blueberry Clusters, to be a fatal flaw in her case.  More specifically, the court held that, in the absence of such allegations, the complaint failed to plausibly allege that plaintiff was deceived by either the “evaporated cane juice” or the “no refined sugars” claim on defendant’s label.

Notably, the court declined to substantively consider defendant’s argument that the FDA’s primary jurisdiction over food labeling warranted dismissal of the matter, stating that such argument was recently called into question by the Supreme Court’s decision in POM Wonderful LLC v. Coca-Cola Co.

This decision serves as a reminder to defendants facing false advertising complaints in federal court that the “plausibility” standard set forth in the Supreme Court’s Iqbal and Twombly decisions can be an effective weapon in your arsenal when trying to obtain early dismissal of consumer class actions.

© 2019 Proskauer Rose LLP.

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About this Author

Lindsey A Olson Attorney, Litigation, Proskauer Law Firm
Associate

Lindsey Olson is an Associate in the Litigation Department, resident in the New York office.

212-969-3491
Victoria L Loughery, Proskauer Law Firm, Litigation Attorney
Associate

Victoria Loughery is an Associate in the Litigation Department, resident in the New York office. Her practice includes a broad range of commercial litigation and arbitration matters, with a particular emphasis on advertising, trademark, consumer protection, and entertainment disputes, including disputes before the National Advertising Division and National Advertising Review Board. She has represented clients in a wide range of industries, including consumer products, music, publishing, video gaming, and financial services.

212-969-3523